LADWP files lawsuit against Great Basin

October 22, 2012

Los Angeles Department of Water and Power officials filed a federal lawsuit Friday to force the Great Basin Unified Air Pollution Control District to halt what the department is calling Great Basin’s “systematic and unlawful issuance of water-wasting orders to L.A.’s customers,” related to dust mitigation on Owens Lake.
To date, the LADWP has spent $1.2 billion over the past 10 years to control dust blowing off Owens Lake, in compliance with regulations.
The LADWP is claiming that it has met its obligations on the dry lake, and will not be spending more city money or water for new mitigation measures.
Currently, the department said it is using approximately 50 percent of the water from the Los Angeles Aqueduct for dust mitigation, and purchasing water from the Metropolitan Water District of Southern California to make up the difference.
The LADWP did say it would continue its current dust mitigation projects.
Great Basin Unified Air Pollution Control Officer Ted Schade said the LADWP has reduced dust blowing off the dry lake by 90 percent, but is required by law to reduce at least 99 percent of the dust. He said mitigation orders issued in 2010, 2011 and an order that is in the works for 2012 should complete the project.
The LADWP said the most recent orders would require LADWP to spend another $400 million to mitigate air pollution that it says it did not cause.
“These orders, according to the lawsuit, are in violation of the California State Constitution and federal and state laws and will, unless they are halted, result in the continued waste of billions of gallons of scarce California drinking water,” a press release from the LADWP states.
Schade said Great Basin “has carefully reviewed the DWP’s lawsuit and believes it will not prevail in its attempts to avoid the law. The DWP has broken its promises to the Owens Valley. The District believes its goals are shared by the people of the City of Los Angeles; that the DWP’s need for water comes with a legal responsibility to protect the environment and the health of the communities it impacts. Great Basin believes the court will see through DWP’s attempts to avoid the law and will order the DWP to control its air pollution.”
Ron Nichols, general manager of LADWP, accused Schade in a press release of making up his own interpretations of the law.
“Los Angeles water consumers have devoted more than $1.2 billion over the last decade to control Owens Lake dust,” Nichols said. “And we have achieved exactly what we agreed to do and were required to do by Great Basin. As we wrap up our obligations, the local regulator moves the goal posts, making up his own interpretation of the law without accountability to even his own board. Great Basin seeks to force L.A. to spend hundreds of millions more to reduce dust that the City did not create – all while requiring L.A. to fund 90 percent of his entire agency’s operating costs, including staff salaries, pension system and paying his outside lawyers at the rate of $750 an hour. Enough is enough.”
The lawsuit, filed in the United States District Court for the Eastern District of California last week, alleges, among other causes of action, that Great Basin and Schade, as its air pollution control officer, have:
• Ignored statutory limitations on their authority;
• Acted in an arbitrary and capricious manner;
• Issued orders that originate from an unenforceable legal source;
• Acted to treat Los Angeles water customers differently than any other similarly situated consumers anywhere else in California or the United States;
• Issued orders based on flawed science in an attempt to force Los Angeles consumers to mitigate dust emissions that were not caused by LADWP; and
• Compelled the LADWP to engage in an unconstitutional waste of water, to the detriment of both California’s overall water supply and water consumers in the City of Los Angeles.
The lawsuit comes on the heels of a State Water Resources Board hearing this past spring that weighted both sides of the argument.
The Air Resources Board was scheduled to consider arguments from the LADWP and Great Basin, and decide if the utility had met its obligations for dust mitigation as stated in a 1997 agreement.
Schade said both Great Basin and the LADWP requested that the Air Resources Board withhold its finding to give both agencies an opportunity to attempt to reach a solution on their own.
“This was a complete surprise to us. I thought we were going into mediation, a discussion, but it seems they have decided to declare war here,” Schade said.
In an op-ed submitted for publication to The Inyo Register, Nichols says Great Basin has refused to cooperate in discussions with LADWP.
“In recent months we have held high-level discussions with governmental leaders to work with LADWP to help build consensus around new, innovative approaches that will protect the water, conserve scarce water and be more cost-effective for LADWP water consumers who now pay two months a year of their water bills solely for dust mitigation,” Nichols writes. “Unfortunately, one essential party – the Great Basin Unified Air Pollution Control District – refused to participate in this process in any useful way and instead decided to both sue the city of Los Angeles over the department’s appeal of demands to pay for outrageous legal fees of Great Basin’s outside counsel while at the same time continuing to impose unjustified demands on the department for new areas of dust control.”
Nichols further writes that the lawsuit sends a message to the residents of L.A., “that while we intend to continue to honor our obligations at Owens Lake, our water consumers will no longer be victimized by an unaccountable local regulator.”
LADWP’s decision is supported by L.A. Mayor Antonio Villaraigosa.
“The LADWP brought this lawsuit only as an absolute last resort,” he said in a press release. “We have no intent to walk away from our fundamental obligations at Owens Lake. In fact, over recent months, we have been working productively with federal and state officials on a process that would have both protected the environment while saving enormous amounts of water and safeguarding the pocketbooks of Los Angeles ratepayers. Unfortunately, just one agency stood in the way of progress by continuing to issue unreasonable orders on the people of Los Angeles. As a result, we had no choice but to go to court.”
The lawsuit, along with other relevant materials, can be found at www.ladwp.com/OwensLake[3].